The Maryland Dry Dock Co.

In the Matter of THE MARYLAND DRY DOCK COMPANY and BALTIMORE ASSN. PATTERN MAKERS, PATTERN MAKERS' LEAGUE OF NORTH AMERICA Case No. R-1765.-Decided May 17, 1940 Shipbuilding and Repairing Industry-Investigatwn of Representatives: con- troversy concerning representation of employees : employer refused to recognize Pattern Makers Union as bargaining representative of patternmakers in its employ because of outstanding agreement recognizing rival union as exclusive bargaining agency in an industrial unit; contract , no bar to-Unt Appropriate for Collective Bargaining : patternmakers in past indicated an intention to main- tain their identity as a distinct bargaining group within plant ; held pattern- makers could constitute an appropriate unit ; final determination of unit, how- ever, to depend on choice of bargaining representatives by patternmakers in election to be ordered ; ( Smith, dissenting ) would dismiss petition-Election Ordered, Mr. Herbert 0. Ebey, for the Board. Mr. W. Purnell Hall, Jr., of Baltimore, Md., for the Company. Mr. George Q. Lynch, of Washington, D. C., for the Pattern Makers Union. Mr. Phillip H. Van Gelder, of Camden, N. J., for Local No. 31. Mr. S. G. Lippman, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On February 20, 1940, Baltimore Assn. of Pattern Makers, Pattern Makers' League of North America, herein called the Pattern Makers Union, filed with the Regional Director for the Fifth Region (Baltimore, Maryland) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of The Maryland Dry Dock Company, Baltimore, Maryland, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Re- lations Act, 49 Stat. 449, herein called the Act. On March 6, 1940, the National Labor Relations Board, herein called the Board, acting pursuant,to Section 9 (c) of the Act and Article III, Section 3, of 23 N L. R B, No 95. 283034-41-vol 23-59 917 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Di- rector to conduct it and to provide for an appropriate hearing upon 'due notice. On March 11, 1940, the Regional Director issued a notice of hearing, copies of which together with copies of the petition were duly served upon the Company , upon the Pattern Makers Union, and upon Industrial Union of Marine and Shipbuilding Workers of America, Local No. 31 , herein called Local No. 31, a labor organiza- tion claiming to represent employees directly affected by the investi- gation. Pursuant to the notice a hearing was held on March 18, 1940, at Baltimore, Maryland, before Henry W. Schmidt , the Trial Examiner duly designated by the Board. The Board and the Pat- tern Makers Union were represented by counsel , the Company and Local No. 31 by their duly authorized representatives. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses , and to introduce evidence bearing on the issues . During the course of the hearing Local No. 31 moved to dismiss the petition , and the Trial Examiner reserved ruling for the Board on this motion. He made other rulings which the Board has reviewed . The rulings are hereby affirmed. In respect to the motion on which ruling was reserved , said motion for reasons hereinafter appearing is denied. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. BUSINESS OF THE COMPANY The Maryland Dry Dock Company is a Maryland corporation engaged in the building and sale of ships and in the repair of ships. In connection with its building and repair operations , the Company maintains a plant at Curtis Bay, Maryland, where it employs 1,000 production and maintenance employees, 12 technical employees, 35 clerical employees, 15 salesmen, and about 150 supervisory employees. During 1939 the Company built or performed repair operations on about 600 ships ranging in size from 200 tons to 10,000 tons. Approximately 80 per cent of this work was performed on "out of state or foreign ships," that is, ships sold in and destined for inter- state and foreign commerce . In 1939 the Company's receipts from sales of its ships amounted to more than $2,000,000. In the course of operations at Curtis Bay, the Company uses vari- ous raw materials consisting chiefly of steel plates, shapes and bars, forgings, castings, billets, lumber, copper, fittings, rivets, and mis- THE MARYLAND DRY DOCK COMPANY. 919 cellaneous finished products, about 50 per cent of which are regularly purchased and shipped to the plant from outside the State of Maryland. The Company concedes for the purposes of these proceedings that it and its employees are subject to the jurisdiction of the Act. II. THE ORGANIZATIONS INVOLVED Baltimore Assn. of Pattern Makers, Pattern Makers' League of North America, is a labor organization chartered by Pattern Makers' League of North America, a labor organization affiliated with Ameri- can Federation of Labor. It admits to membership patternmakers employed by the Company. Industrial Union of Marine and Shipbuilding Workers of America, Local No. 31, is a local of Industrial Union of Marine and Ship- building Workers of America, a labor organization affiliated with Congress of Industrial Organizations. It admits to membership em- ployees of the Company. 111. THE QUESTION CONCERNING REPRESENTATION On February 17, 1940, the Pattern Makers Union requested the Company to recognize and otherwise bargain collectively with it as the exclusive representative of all persons employed as pattern- makers in the Curtis Bay plant. The Company refused to do this because of a collective labor agreement then outstanding between itself and Local No. 31 wherein it recognized Local No. 31 as the exclusive collective bargaining representative of substantially all em- ployees at the plant including patternmakers. This agreement termi- nated on February 20, 1940, and on February 21, 1940, after the filing of the petition herein, the Company and Local No. 31 entered into a new collective labor agreement containing a provision for recognition of Local No. 31 identical with that in the previous agreement. We find that a question has arisen concerning representation of employees of the Company. Neither agreement constitutes, a ground for our not proceeding to an investigation and determination of this question.' IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial I Matter of Wickwire Spencer Steel Company and Federated Industrial Union, 18 N. L. R. B. 372. 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relation to trade, traffic, and commerce among the several States, and between the States and foreign countries, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT So far as the record shows, collective bargaining relations be- tween the Company and employees at its Curtis Bay plant began in 1937. In October of that year the Company recognized The Balti- more Marine Council, herein called the Marine Council, as the sole representative of "all the employees of the Company for the pur- poses of collective bargaining" in respect to wages, hours of service, and other working conditions. The Marine Council is a labor or- ganization comprising several constituent craft unions which, to- gether with itself, are affiliated with American Federation of Labor. In January 1938 the Company and the Marine Council entered into a collective labor agreement which provided for recognition by the Company of the Marine Council as the "exclusive representative of all the Employees of the Company except Office Employees and Em- ployees in a Supervisory capacity, for the purpose of collective bar- gaining," and covered the working conditions of such employees. In October 1938 Local No. 31 began to enroll members among the plant employees. On December 7, 1938, pursuant to agreement of the Company and the interested labor organizations, a consent elec- tion by secret ballot was conducted under the supervision of the Regional Director to determine whether employees of the Company, exclusive of clerical and office employees, guards, janitors, and super- visors, desired to be represented by the Marine Council, by Local No. 31, or by neither of these organizations, for purposes of collective bargaining. In this election a substantial majority of those eligible to vote selected and designated Local No. 31 as their collective bargaining representative. Following the election the Company and Local No. 31 entered into a collective bargaining agreement which became effective on February 21, 1939, wherein the Company accorded Local No. 31 recognition as the "exclusive representative for the purposes of collective bargaining of all the Company's employees except : those regularly on the salaried basis ; engineering, office, and clerical employees; guards; janitors; and employees (whether salaried or hourly paid) who spend the majority of their time super- vising- other employees." The agreement contained provisions cover- ing wages, hours, and other working conditions of the employees as to whom recognition was granted. On February 21, 1940, after the filing of the petition herein, Local No. 31 and the Company entered into the collective agreement, heretofore mentioned, providing for THE MARYLAND DRY DOCK COMPANY 921 exclusive recognition of Local No. 31 in terms identical with the previous contract of the parties. The Company employs four patternmakers. A majority have been members of the Pattern Makers Union for some time past, and in various ways throughout the period under review have indicated an intention to maintain their identity as a distinct bargaining group within the plant. In 1937 and 1938, when the Marine Council, as above set forth, bargained for employees at the plant on an industrial basis, the Pattern Makers Union refused to become part of the Marine Council or otherwise to authorize the Marine Council to bargain in behalf of the patternmakers employed by the Company. In the consent election of December 7, 1938, the patternmakers indi- cated on the ballots which they cast that they desired to be repre- sented by the Pattern Makers Union for purposes of collective bargaining; and after Local No. 31 was accorded exclusive recog- nition at the plant on an industrial basis, refused to become members of that local or,designate it as collective bargaining representative. We are of the opinion that the patternmakers could appropriately constitute a separate unit or be part of a larger industrial unit such as that covered by the 1939 and 1940 contracts, and that the desires of these employees for collective bargaining representation either through the Pattern Makers Union or Local No. 31 should control our determination whether these employees form a separate unit appropriate for collective bargaining.2 Accordingly, we shall direct the conduct of an election to determine the desires of the pattern- makers for representation. If in that election a majority of the patternmakers designate the Pattern Makers Union as their bargain- ing representative, then we shall find that the patternmakers em- ployed by the Company constitute a separate unit appropriate for collective bargaining. If a majority vote for Local No. 31, we shall find that they do not constitute such a unit. In view of the failure of Local No. 31 to file a petition for, or otherwise request, an investi- gation and certification of representatives, and in view of its out- standing contract with the Company, we shall make no determina- tion in these proceedings with respect to the appropriateness of an industrial unit for purposes of collective bargaining. If in the election a majority vote for Local No. 31, we shall dismiss the petition. VI. THE DETERMINATION OF REPRESENTATIVES We are of the opinion that the purposes of the Act will best be effectuated and the desires of the patternmakers for representation 2 Matter of The Globe Machine and Stamping Co. and Metal Polishers Union, Local No. 3; International Association of Machinists, District No 54; Federal Labor Union 18788 and United Autotmobile Workers of America, 3 N L. R. B. 294. 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD best ascertained in an election by secret ballot. Accordingly, we shall direct that an election be held among all the patternmakers employed by the Company during the pay-roll period next preceding the date of Direction of Election, including patternmakers who did not work during such period because they were ill or on vacation or were then or have since been temporarily laid off, but excluding those patternmakers who have since quit or been discharged for cause, to determine whether they desire to be represented by the Pattern Makers Union, by Local No. 31, or by neither, for the purpose of collective bargaining. Upon the basis of the above findings of fact and the entire record in the case, the Board makes the following: CONCLUSION of LAW A question affecting commerce has arisen concerning the repre- sentation of employees of The Maryland Dry Dock Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. DIRECTION OF ELECTION .By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of National Labor Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with The Maryland Dry Dock Company, Baltimore, Maryland, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction of Election under the direction and supervision of the Regional Direc- tor for the Fifth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, , of said Rules and Regulations, among the patternmakers of the Company, employed at the Curtis Bay plant during the pay-roll period next preceding the date of this Direction of Election, includ- ing patternmakers who did not work during said pay-roll period because they were ill or on vacation, and those who were then or who have since been temporarily laid off, but excluding those who have since quit or been discharged for cause, to determine whether they desire to be represented by the Baltimore Assn. of Pattern Makers,, Pattern Makers' League of North America, affiliated with American Federation of Labor, or by Industrial Union of Marine THE MARYLAND DRY DOCK COMPANY 923 and Shipbuilding Workers of America, Local No. 31, affiliated with Congress of Industrial Organizations, for the purposes of collective bargaining, or by neither. MR. EDWIN S. SMIITH, dissenting : I see no warrant in granting the craft group in this case the privi- lege of splitting itself from the industrial unit covered by the 1939 and 1940 agreements. There is a history of successful bargaining on an industrial basis, reflected in the contracts which both the American Federation of Labor affiliate and the Congress of Indus- trial Organizations affiliate obtained from the Company. The pat- ternmakers themselves have been included in and benefited from this bargaining. Nor have they until the present time sought separate bargaining. Because of the past bargaining history on an industrial basis and for reasons given by me in my dissent in the Allis- Claalmers 3 and similar cases, I would dismiss the petition of the Pattern Makers Union. s Matter of Allis-Chalmers Manufacturing Company and International Union, United Automobile Workers of America, Local 248, 4 N. L. R. B. 159, 175.